Lars Puvogel I. Introduction

Statutory Interpretation: Judges as Legislators?

Perhaps even more subtle, a second string of judicial challenges of parliamentary sovereignty emerged out of the function of the judiciary as entailed by the doctrine itself. As has been explained above one of the judiciary's primary functions in New Zealand's legal system is to interpret legislation. This role is of course, due to the subordinate position to Parliament, in theory subject to giving effect to the latest expression of the will of Parliament.⁷⁶ However, statutory interpretation in practice is not straightforward, and the sometimes broad wording used in statutes allows the courts considerable manoeuvrability. As regards this manoeuvrability a senior judge of the Australian High Court, has commented, that 'Parliament and the people accept that the courts have the right to go through statutes with a fine tooth comb. This is part of the relationship between Parliament and the courts in countries such as ours'.⁷⁷ However, his Honour then goes on to emphasize the fact that, 'the relationship is accepted on the premise that the courts will not, without legal authority, go beyond their proper function'.⁷⁸ Thus, if the law is clear, the judge, like anyone else, is obliged to obey the law. Nevertheless, it is this aspect of the relationship between the legislature and the judges that has often prompted the reproach that the courts through the interpretation of statutes usurp a legislative function and in fact make law. This issue is complex and outside the scope of this work.⁷⁹ The point to be made here is that even under orthodox judicial thinking the words of an Act of Parliament are not always seen as sacrosant. Indeed, statutory interpretation has, in recent times, come close to challenging the supremacy of Parliament's laws. Agood example is provided by the decision in Anisminic Limited v Foreign Compensation Commmission.⁸⁰which dealt with an 'ouster clause' referred to earlier in the paper. The provision in issue declared that a determination of the commission 'shall not be called into question in any court of law'. The House of Lords held that those words did not prevent a court from intervening to review the decision of a case where the commission had exceeded its jurisdiction thus allowing the decision to be successfully challenged on the ground of jurisdictional error. Moreover, in orderto keep administration agencies and tribunals fully subject to the rule of law the House of Lord adopted an extremely wide view of this kind of error. Against the background of the express words used in the provision this is clearly not the result one would have commonly expected. The common feature of all the cases where the courts have disregarded the clear wording of Acts of Parliament is that all concerned statutes presumably violate fundamental rights. There is the well known principle that courts will construe legislation, made by Parliament, in ways protective of fundamental rights. Even Dicey while ruling out any judicial power to overrule or set aside primary legislation, acknowledged the practice of the courts to interpret legislation on the basis of certain presumptions:

When attempting to ascertain what is the meaning to be affixed to an Act of Parliament, [the judges] will presume that Parliament did not intend to violate the ordinary rules of morality, or the principles of international law, and will therefore, whenever possible, give such an interpretation to a statutory enactment as may be consistent with the doctrines both of private and international morality.⁸¹

Thus, such rights may only be abolished or diminished by legislative language which is expressed in the clearest of terms.⁸² Although Dicey was technically right to describe these as rules of interpretation, the description actually disguises their importance. This is vividly illustrated by a line of cases decided in the context of the New Zealand Bill of Rights Act 1990 (BORA).

The Impact of the New Zealand Bill of Rights Act 1990

Recent decisions of the New Zealand Court of Appeal suggest that old common law canons of construction should give way to a new, rights-centred approach to statutory interpretation, sourced in s 6 of the BORA. The question is whether this new judicial approach suggests a new relationship between the courts and Parliament and consequently, heralds the end of Dicey's vision of parliamentary sovereignty.

The Bill of Rights Act: An Overview

History and legal status

The New Zealand BORA was assented to by the Governor-General in August 1990. This assent marked the end of a five year debate over the principles of parliamentary supremacy and whether New Zealand should continue to observe these principles or whether the country should incorporate into its legal system an entrenched document of constitutional magnitude capable of protecting individual rights beyond the reach of Parliament.

The idea for a New Zealand Bill of Rights was resurrected⁸³ by Geoffrey Palmer in 1985. His ideas were embodied in the 1985 Government White Paper A Bill of Rights for New Zealand which proposed that a Bill of Rights was necessary to bring New Zealand in line with its obligations under international law, notably the International Covenant on Civil and Political Rights⁸⁴ and moreover as a means of safeguarding against the potential abuses of executive government.

The Draft Bill originally proposed, took the form of an entrenched supreme law that would empower the courts to strike down inconsistent legislation, and included a wide remedies clause authorising the courts to redress violations of rights by granting such remedy as the court considers appropriate and just in the circumstances. The Bill would therefore have brought an end to parliamentary sovereignty. It was, however, 'met with overwhelming public opposition'⁸⁵ and was rejected. The Select Commission concluded that New Zealand was not ready, if it ever would be, for a fully fledged Bill of Rights along the lines of the White Paper draft.⁸⁶ Like the White Paper the Act which finally became law confirmed a similar catalogue of civil and political rights.⁸⁷ It however differed in two crucially important aspects: it was an ordinary rather than an entrenched document and the courts were given no power to strike down repugnant legislation. Moreover, it omitted the remedy clause contained in the White Paper.

The operational provisions

The difficult task of the BORA to strike a balance between preserving parliamentary sovereignty on the one hand and achieving compliance with the fundamental rights set out in the Covenant and affirmed by the BORA itself on the other hand is illustrated by some of the operational provisions of the Act. Sections 4-6 which deal with the relationship between the rights conferred and other law have particularly given rise to significant interpretation difficulties. For a better understanding of the following discussion the texts of these sections are reproduced below.

4. Other enactments not affected - No court shall, in relation to any enactment (whether passed or made before or after the commencement of this Bill of Rights), —

1. 
   Hold any provision of the enactment to be impliedly repealed or revoked, or to be in any way invalid or ineffective; or
   
2. 
   Decline to apply any provision of the enactment;
   

by reason only that the provision is inconsistent with any provision of this Bill of Rights.

5. Justified limitations - Subject to section 4 of this Bill of Rights, the rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

6. Interpretation consistent with Bill of Rights to be preferred - Whenever an enactment can be given a meaning that is consistent with the rights and freedoms contained in this Bill of Rights, that meaning shall be preferred to any other meaning.

Modified principles of statutory construction?

Under all constitutional regimes that give courts power to strike down legislation, an interpretative remedy is preferred on the presumption that interpretation is less intrusive on the legislative branch of government.⁸⁸ In New Zealand, however, because of the doctrine of parliamentary sovereignty, the courts in the end must preserve the legislation and must not deprive the statute of its intended effect. The crucial question therefore is, how far can interpretation legitimately take the courts?⁸⁹ Under s 6 of the BORA the judiciary is entitled to prefer the meaning of words within a statute that is consistent with the Bill of Rights. It is only in cases of clear inconsistency that the Bill is to be read down.⁹⁰ This has provided the judiciary with the power to favour particular interpretations of statutes, as it is obvious that the question of inconsistency will hardly ever be clear-cut. Where a statute is open to more than one interpretation, it is clear that the courts will always choose the interpretation that is compatible with the BORA. Therefore, it is arguable that, absent a clear and explicit parliamentary intention to the contrary, the BORA created a rebuttable presumption in favour of an interpretation consistent with the rights contained in it and thus has added a new principle of statutory interpretation that modifies Dicey's vision of parliamentary sovereignty.⁹¹ Nevertheless, while it must be accepted that s 6 of the BORA signals some change to statutory construction method, the traditional approaches to interpretation cannot be fully jettisoned if parliamentary sovereignty is to be meaningfully preserved. If the basic rules of judicial interpretation are altered in a way so as to make it very hard for Parliament to assert its sovereignty, then interpretation will become judicial legislation, a development which was apparently sought to be prevented by s 4 of the Act.⁹²

However, the interrelation of the sections being a matter of interpretation itself, the issue was to be left to the courts to resolve.

Early Influence on Statutory Construction: The Court of Appeal's Approach to Interpretation

From the beginning there was a suggestion that the Act should be treated as some sort of special, 'half-constitutionalized'⁹³ Bill of Rights to which the judges would give primacy unless clear legislation indicated otherwise. In the first ever BORA case to reach the Court of Appeal, Flickinger v Crown Colony of Hong Kong⁹⁴ Cooke P. suggested that s 6 of the BORA may require a court to depart from a long established judicial interpretation of the meaning and intent of a particular statutory provision. He said that the court saw 'force in the argument that, to give full effect to the rights

..., [a particular statutory provision with a long-standing interpretation] ... should now receive a wider interpretation than has prevailed hitherto'.

In those early cases the Court of Appeal thus manifested that a purposive approach to interpretation of the Act is to be favored, putting emphasis on the fact that it will adopt the interpretation which best gives effect to the underlying purpose of the rights.

Baigent's Case

The practical effect of the Court's intended purposive approach to human rights legislation is illustrated by the decision in the case of Simpson v Attorney-General (Baigent's Case).⁹⁵ In that case the Court of Appeal reinstated claims against the Crown based on alleged breaches principally of s 21 of the BORA. Section 21 states that everyone has the right to be secure against unreasonable search or seizure. Mrs Baigent's house had been mistakenly specified as the target of a search warrant and the police, notwithstanding that they were told they had the wrong address, searched the premise anyway. The Court of Appeal held that the Crown was liable for unreasonable search. Moreover it held that in certain cases breaches of the Act could be remedied by an award of damages, notwithstanding the absence of an express provision on remedies in the Act. In reaching his conclusions, the Court relied on the following assumptions. Firstly, because of the fundamental nature of the rights affirmed by the BORA, the courts should adopt a 'liberal, purposive' and 'rights-centred' approach to interpretation. Secondly, adequate judicial remedies to redress violations of the BORA are necessary in orderto give effect to its provisions. Thirdly, the absence of an express remedies clause in the Act did not indicate a legislative intention to confine the courts to existing common law remedies but implied that Parliament had left it for the courts to develop appropriate remedies. Finally, the Court drew heavily upon precedents from countries with entrenched constitutions, and saw no impediment to inferring a similar remedy under the BORA. Indeed, its non-entrenchment was specifically rejected as a distinguishing feature for the purpose of that case.⁹⁶ Instead it was argued that the 'fundamental' nature of the rights together with the growing international recognition of human rights are more important than the legal form in which they are declared.

Rights-centred interpretation or judicial law making in disguise?

Following Baigent's Case, BORA claims for compensation have been considered by the courts in other cases.⁹⁷ The developments prompted the question of whether the subject of remedies under the Act should be left to be further developed judicially, or whether legislative clarification or reform might be desirable. The Law Commission has issued a study endorsing the approach taken by the Court of Appeal, and concluding that no legislation should be introduced to remove the general remedy for breach of the BORA established in Baigent's Case.⁹⁸ Whereas this may seem to support the approach taken by the Court of Appeal, the reasoning in Baigent's Case nevertheless remains doubtful as regards the doctrine of parliamentary sovereignty.

First of all, a purposive approach can only be used as an aid in interpreting the meaning of the words of a provision. It cannot be used to create provisions that do not exist.⁹9 Moreover it is confined to giving effect to parliamentary intent and thus subject to a clear expression of Parliament's will. For this reason it is especially the last step in the Court's reasoning that causes problems. It amounts to an assertion that Parliament intended the BORA to carry a higher constitutional status.

However, the BORA was deliberately enacted as an ordinary statute, capable of repeal or amendment by a simple majority vote in Parliament. Moreover, its history demonstrates beyond doubt that Parliament did not intend to confer power on the courts to create a new regime of public civil liability. Facing continuing opposition, Geoffrey Palmer during the second reading of the Bill said:

[T]he Bill creates no new legal remedies for courts to grant. The judges will continue to have the same legal remedies as they have now, irrespective of whether the Bill of Rights is an issue.¹⁰⁰

Accordingly there was a clear expression of Parliament's will and thus no room for the interpretation on which the Court of Appeal embarked in its decision. Arguably, the decision therefore illustrates a type of judicial activism that although using the label of statutory interpretation actually amounted to judicial law-making.

Growing Judicial Activism - Declarations of Incompatibility

Baigent's Case was, however, only one step in a series of cases incrementally endowing the BORA with increasingly stronger powers. In a next step the Court of Appeal canvassed the possibility of a declaration of inconsistency with the BORA. Such a declaration is a pronouncement by the court that, having gone through its Bill of Rights analysis, the legislation in question is, in the court's view, an unreasonable limit on a right or rights contained in the BORA.¹⁰¹ This form of remedy had been foreshadowed soon after the passage of the Act by academic commentators.¹⁰²

Moonen v Film & Literature Board of Review¹⁰³

In the case of Moonen a five judge bench of the Court of Appeal discussed the possibility of such a new remedy of a declaration of inconsistency. In the course of explaining the correct approach to the BORA the Court of Appeal suggested that s 5:

necessarily involves the Court having the power, and on occasions the duty, to indicate that although a statutory provision must be enforced according to its proper meaning, it is inconsistent with the Bill of Rights, in that it constitutes an unreasonable limitation on the relevant right or freedom which cannot be demonstrably justified in a free and democratic society. ¹⁰⁴

This discussion was however conducted in the abstract and was not applied to the facts.

R v Poumako¹⁰⁵

It did not take very long before at least one judge of the Court of Appeal followed through on these dicta and actually made a formal judicial indication of inconsistency. In the case of R v Poumako, the facts of which will be set out below, the Court of Appeal was split as to whether clearly retrospective criminal legislation could be limited in its effect by use of s 6 of the BORA, or whether the Court should only express its disapproval of the statute. Whereas the majority of the Court, basing their approach on s 6 of the BORA, chose to seek an interpretation which would be less inconsistent with fundamental rights, Thomas J was of the view that the provision in question was sufficiently clear and that the majority 's preferred interpretation was at odds with parliamentary intent. In his opinion 'to attribute to a statutory provision which is neither equivocal nor malleable in its terms a meaning which is admittedly contrary to Parliament's discernible intent is to effectively challenge Parliament's supremacy'.¹⁰⁶ He then, however, went on and said that 'this Court would be compromising its judicial function if it did not alert Parliament in the strongest manner to the constitutional privation of this provision'.¹⁰⁷ In his view, obiter statements lacked the force needed to express the Court's disapproval. For this reason, having concluded that the provision in question violated rights guaranteed in the BORA, he rejected the procedural matters raised by the Crown¹⁰⁸ and, being the first New Zealand judge ever, made a formal declaration of inconsistency with the BORA.¹⁰⁹

Implications for the doctrine of parliamentary sovereignty

In earlier cases at least two Court of Appeal judges had opined that it is no part of the function of the courts to examine whether a statutory limit on a BORA right can be justified under s 5 of the BORA.¹¹⁰ And in the light of traditional constitutional paradigms there may indeed be serious doubts on whether there is a jurisdiction to make such an indication of inconsistency.

The traditional role of judges under the Diceyan system has been to apply the laws passed by Parliament and not to pass judgment upon their reasonableness or comment on their quality. A judicial indication of inconsistency however would necessarily involve the courts passing judgment on the legal quality (though not validity) of legislative content and thus lead to a fundamental alteration in the nature of the judicial function.

Moreover, a judicial indication of inconsistency will bring about enormous political pressure to change the law.¹¹¹ In the United Kingdom, the Government recorded in the White Paper that accompanied the draft Human Rights Bill,¹¹² which in s 4 expressly provides for the possibility of the courts to make a 'declaration of incompatibility' that 'a declaration that legislation is incompatible with the Convention rights ... will almost certainly prompt the Government and Parliament to change the law'.¹¹³ Keeping that in mind, it is obvious that such a judicial remedy will have a significant impact upon the current paradigm of the constitutional role and function of the judiciary, putting significant practical power into the hands of the judges, even if nominally the locus of legal power remains with Parliament.¹¹⁴

Abrogating Dicey?

Far-reaching as the implications of the decisions discussed above for the relationship between the courts and Parliament may have been, they did not go as far as questioning whether the courts in particular cases should apply the relevant statute or not. At least that issue was thought to be settled by the doctrine of parliamentary supremacy beyond any reasonable doubt. But two recent cases have cast serious doubt upon the proposition, which may be regarded as the core proposition under the Diceyan conception in terms of describing the relationship between the courts and Parliament.

The background

Both cases arose out of the so-called 'home invasion' amendments and concerned the issue of retrospective criminal statutes. In order to understand fully the issues that were raised in the decisions and the reasoning applied by the judges the pertinent legislation, namely the sentencing regime for murder, will be shortly reviewed.

At the time of the offences, the sentence for murder was life imprisonment. On 1 September 1993 the Criminal Justice Amendment Act 1993 gave the courts the power to impose a minimum term of imprisonment of more than 10 years where the circumstances of the offence were 'exceptional'.¹¹⁵ However, s 56 of the Act provided that this new power did not apply to offences committed prior to 1 September 1993. This was consistent with the cardinal principle of the rule of law that a citizen should be able to rely on the law as it was when he or she acted. This principle of non-retrospectivity is embodied in ss 25(g) and 26 of the BORA, s 7 of the Interpretation Act 1999 and Art 15(1) of the International Covenant on Civil and Political Rights. Moreover it is enshrined in s 4 (2) of the Criminal Justice Act 1985 (CJA) which provides:

Without limiting subsection (1) of this section, except as provided in subsections 152 (1) and 155(1) of this Act but notwithstanding any other enactment or rule of law to the contrary, no Court shall have power, on the conviction of an offender of any offence, to impose any sentence or make any order in the nature of a penalty that it could not have imposed on or made against the offender at the time of the commission of the offence, except with the offender's consent.

In 1999, the legislation relating to sentencing changed again through the enactment of two statutes: the Crimes (Home Invasion) Amendment Act 1999 which inserted a definition of 'home invasion' into the Crimes Act 1961 and raised the maximum penalties for specified offences involving home invasion; and the Criminal Justice Amendment Act (No 2) 1999 (CJAA) which amended s 80 of the CJA by raising the minimum parole period for murder from ten to thirteen years in cases involving home invasion. Section 2(4) of the CJAA reads:

Section 80 of the principal Act (as amended by this section) applies in respect of the making of any order under that section on or after the date of commencement of this section, even if the offence concerned was committed before that date.

This section apparently purports to give s 80 of the CJA retrospective application. Indeed, the Member of Parliament who proposed the amendment affirmed the intended retrospective effect. She stated:

I would also like to draw the House's attention to the impact that this [her amendment] will have because, of course, once this Bill becomes law, and it seems that the majority of parliamentarians wish that to be so, then the impact of that provision will affect those who are now before the courts on murder charges in the context of home invasion.¹¹⁶

The issue in both cases was whetherthe purportedly retrospective provision, s 2(4) of the CJAA , prevailed over the anti-retrospective protection in s 4(2) of the CJA.

R v Poumako revisited¹¹⁷

In the first case R v Poumako, the appellant was convicted of a crime, which was committed on 30 November 1998, and hence before the home invasion amendments came into force. In the High Court, Salmon J imposed a 13 year period of imprisonment, holding that the unlimited retrospective application of the amended s 80 of the CJA was the only possible interpretation of s 2(4) of the CJAA and that thus, it applied retrospectively to the appellant.¹¹⁸

In the Court of Appeal the judges avoided the question of determining the meaning and effect of the legislation. They held that the appellant's behaviour came within the category of 'exceptional circumstances' underthe previous sentencing regime and that he would have received a minimum period of 13 years imprisonment even if the new section of the CJA did not apply to his case.

Nevertheless the Court at least addressed the question of the true construction of s 2(4) of the CJAA in obiter dicta. The majority determined the issue by narrowly construing the amendments. While acknowledging it required s 80 of the CJA to be given some retrospective effect they emphasized the importance of the BORA and, basing their approach on s 6 of the BORA, they chose to seek an interpretation which would be less inconsistent with fundamental rights. They identified two possible interpretations. First, in accordance with the apparent terms of s 2(4) of the CJAA, s 80 CJA was to be given unlimited retrospective effect. Secondly, the latter could be seen as being dependent on the concept of 'home invasion' which had been introduced by the Crimes (Home Invasion) Amendment Act 1999. Confronted with the debates in Parliament the majority argued:

These possible constructions are to be considered by reference to section 6. The meaning to be preferred is that which consistent (or more consistent) with the rights and freedoms in the [BORA]. It is not a matter of what the Legislature (or an individual Member) might have intended. The direction is that wherever meaning consistent with the [BORA] can be given, it is to be preferred. The legislature's intention in this regard is clear.¹¹⁹

Consequently, they interpreted s 2(4) CJAA as only having retrospective effect to the point in time when the concept of home invasion was enacted. For this reason, the retrospective effect of the provision was confined to the 15 days between the passing of the Crimes (Home Invasion) Amendment Act 1999, which created the definition of home invasion, and the enactment of the CJAA which included s 2(4).

R v Pora¹²⁰

As regards the factual background of R v Pora the appellant had been convicted for an offence committed in 1992. At the time he committed the offence, judges did not even have a power to set a minimum non-parole period as part of the sentence - that power did not exist until 1993.¹²¹ However, following a retrial on the original charges, the Court had to consider whether it was obligated to sentence Pora to a minimum non-parole term of 13 years' imprisonment under the new sentencing regime. As this was a penalty that could not have been imposed when Pora committed the crime the Court had to decide whether and to what extent the home invasion amendments applied retrospectively.

On appeal, a seven judge bench of the Court of Appeal was unanimous in allowing Pora's appeal. All members held that the legislation was not retrospective beyond 1 September 1993, when the power to impose minimum non-parole periods was first conferred. The Bench was, however, divided on whether the legislation had any retrospective effect at all. The majority of the judges held that with regard to the clear terms of s 2(4) CJAA, s 80 of the CJA, as amended, must be given some retrospective effect. Keith J, delivering a joint judgment for the majority, said that 'Parliament clearly directed the Courts to apply the new powers in respect of home invasion murders committed earlier'.¹²² They regarded Parliament's intentto abrogate the principles of non-retrospectivity as plain. Moreover, in their view orthodox principles of statutory construction prevented the breach from being removed by judicial interpretation. Especially the rules that later enactments prevail over earlier enactments, specific enactments prevail over general enactments and that the meaning of enactments must be ascertained according to their purpose, were given consideration to support their reasoning.

However, in the light of s 56 of the 1993 Amendment the retrospective effect was limited to offences after the initial power to impose a minimum sentence came into effect, which was on 1 September 1993. Therefore the increased mandatory non-parole period could not be applied to Pora.

While this approach already seems to be a rather strained interpretation in order to avoid the retrospective effect of s 2(4) CJAA, the minority judges were prepared to go even further. Elias CJ, Tipping J and Thomas J in a concurring judgment held that s 4(2) of the CJA operated entirely to negate the effect of s 2(4) CJAA and consequently refused to concede s 80 CJA any retrospective effect at all, notwithstanding that s 2(4) of the CJAA was enacted later in time and more specific than the general terms of s 4(2) of the CJA. The focus will lie on the joint judgment delivered by Elias CJ. The principal concern here is with her approach towards orthodox means of resolving inconsistencies between statutory provisions. First, Elias CJ considered the lex posterior derogat priori principle.¹²³ Requiring that later provisions prevail over earlier ones, this rule gives effect to the doctrine of implied repeal as it treats earlier provisions as impliedly repealed to the extent they are inconsistent with later provisions. According to this general principle of statutory construction s 2(4) of the CJAA should have taken priority as it was enacted later in time. The Chief Justice dismissed such a rule as being too 'mechanical' and out of step with the modern, purposive approach to the interpretation of statute.¹²⁴ In her view the 'chronological order of the inconsistent provisions cannot be determinative and is not likely to be helpful'.¹²⁵ Rather the question was which of the two provisions 'was the leading provision'.¹²⁶ This was to be determined by reference to the BORA and other statutory and common law principles, which, enshrining the principle of non-retrospectivity, pointed to favour s 4(2) of the CJA.

She then dismissed the maxim of statutory interpretation of generalia specialibus non derogant, the general does not derogate from the particular.¹²⁷ She rejected the objection that s 2(4) of the CJAA should have prevailed because it was more specific than the general terms of s 4(2) of the CJA, arguing that the above mentioned principle did not equate to a maxim, specialia generalibus derogant, the special derogates from the general.¹²⁸ The acceptance of such a proposition 'would undermine the policy of s 7 of the Interpretation Act and the direction given by s 6 of the BORA'.¹²⁹ The underlying tenor of her reasoning is that the traditional maxims of statutory interpretation are only valuable insofar as they help to indicate Parliament's intention, and moreover that they are subordinate to the legislative direction which is expressed in s 7 of the Interpretation Act and the BORA.

She finally proceeds to examine the legislative history of the section asserting that the Members of Parliament were not aware of the fact that s 2(4) of the CJAA was inconsistent with s 4(2) of the CJA and in breach of the BORA.¹³⁰ Moreover she suggests that it was implausible to believe Parliament would deliberately enact laws that were in breach of the BORA and its international obligations.¹³¹ Therefore the legislative history would not permit any inference that Parliament intended to derogate from the fundamental principle expressed in s 4(2) of the CJA. Considering the objection that if this section prevailed, it would deprive s 2(4) of the CJAA of any effect, she concluded that such a result was mandated by s 6 of the BORA.¹³²

By s 6 of the BORA Parliament had adopted a general principle of legality. This required 'Parliament to speak plainly if it wishes to derogate from principles such as those contained in s 4(2)' .¹³³ According to the minority, the evaluative analysis of the sections, required by s 6 of the BORA, proved that s 2(4) of the CJAA was not such a sufficiently clear expression by Parliament.

Discussion

Pora raises profound questions about the appropriate role of the courts in interpreting legislation. Moreover, given that the traditional canons of statutory interpretation have been closely associated with giving effect to parliamentary sovereignty the approach adopted by the minority may go beyond a mere introduction of a new methodology of interpretation and pose a threat to the very heart of Dicey's doctrine.¹³⁴ In the words of one commentator 'this approach is pregnant with possibility and may necessitate a rethinking of the judicial role'.¹³⁵

From the theoretical point of view, it is arguable that the reasoning, applied in the judgments of Elias CJ, Tipping and Thomas JJ, does not infringe Parliament's powers conferred under the traditional doctrine. According to the Chief Justice, 'this result does not affect the orthodoxy that Parliament cannot bind its successors. Nor does it attempt to tie Parliament to a manner and form restriction which establishes the conditions for valid lawmaking'.¹³⁶ And indeed she then publicly affirms Parliament's supremacy, accepting that Parliament in theory has the right to abrogate basic rights.¹³⁷ For this reason, the approach in Pora has been argued to establish a method of disapplying statutes that avoids a confrontation with Parliament.¹³⁸ Under this approach the courts may declare that a provision was valid but inoperative where Parliament fails to understand the consequences of what it was enacting.¹³⁹ However, acknowledging Parliament's right to override fundamental rights, where it chooses to enact specific and unambiguous legislation this methodology theoretically would not be an assault on the doctrine of parliamentary sovereignty.¹⁴⁰

Nevertheless, even this result as regards the theoretical position of the doctrine may be doubted. Diceyan theory requires the courts to give effect to the will of Parliament as expressed in legislation. What Parliament enacts is law and the courts must apply it. Denying a provision any operational effect can hardly be regarded as an application. Moreover, the attempt to warrant this result with an assumption that Parliament failed to understand the consequences of what it was enacting is an assault on Diceyan theories itself. What Parliament would or should have done if it had thought things through has no effect on the legal validity of a clearly worded enactment. Therefore such statements are an imputation rather than an attempt to implement Parliament's intention. Furthermore they amount to a judicial examination and an assessment of whether Parliament has properly balanced possible advantages and disadvantages of the enacted legislation. A task not envisaged for the courts under Diceyan theory. From a practical perspective the adoption of the modern approach of statutory interpretation is even less unproblematic and challenges the concept of parliamentary sovereignty at its very basis. Despite being introduced as an interpretative model that does not challenge Parliament's supremacy, it effectively results in the judges declining to apply an Act of Parliament.¹⁴¹

The reasoning of the minority is incompatible with the doctrine of parliamentary sovereignty particularly for two reasons: they refuse to apply the doctrine of implied repeal and practically introduce a new manner and form requirement that has to be fulfilled in order for statutory provisions to be valid.

The refusal of Elias CJ, Tipping and Thomas JJ to hold that s 4(2) of the CJA was impliedly repealed by the enactment of s 2(4) CJJA was based on the assumption that the latter if properly interpreted, is subordinate to s 4(2) of the CJA because Parliament did not intend to abrogate basic human rights. The judgments cite with approval Lord Hoffman's observation in R v Secretary of State for the Home Department, ex parte Simms:

Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights. .. But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost.¹⁴²

It has been argued that the minority judgments merely gave practical effect to this sentiment.¹⁴³ Parliament can abridge human rights protection but if it wants to do so it must use express words. This was said to be merely a rule of interpretation,¹⁴⁴ the requirement of explicitness being sourced in an interpretation of s 6 of the BORA.¹⁴⁵

It is, however, clear that an interpretation preferred under s 6 must still be an interpretation available on the wording of the statute. It is not open to the courts to strain statutory provisions to mean something which, on their face, they do not; or to provide an alternative interpretation where the meaning of the provision is clear and unambiguous. This is inherent in the wording of s 6 itself, and in s 4(b), which forbids a court from refusing to apply any provision of an enactment solely by reason of conflict with the Act.

As has been mentioned above, the interpretation preferred by the minority has the strange result that the provision enacted to amend the Criminal Justice Act does not in fact amend it.¹⁴⁶ Moreover, it becomes devoid of any meaning or purpose. It is suggested that such an interpretation cannot be extracted from the text of the provision and cannot be justified by reference to s 6 of the BORA.

At the same time it fails to give effect to the clear imperatives of s 4 of the BORA which reserves full sovereignty to Parliament. It seems that if this section is to have any practical effect, Parliament must expressly invoke it and show some evidence of an intention to override a fundamental right. With regard to the provision in R v Pora one has to ask the question of whether there are words capable of achieving such an object. The only way in which Parliament can express its intentions more explicitly than it has done in the case of s 2(4) of the CJAA, is expressly to oust the relevant provisions in the BORA. Moreover, Parliament seems to have to demonstrate informed understanding of the consequences of its legislation to make sure that the enacted provisions are applied by the courts.¹⁴⁷ Despite assurances to the contrary the level of explicitness required by the minority practically imposes a manner and form requirement on future legislation intended to abrogate basic human rights.

This conclusion is supported by a comparison with a provision of the German Constitution.¹⁴⁸ Article 19 (1) Grundgesetz (Basic Law), requires laws which restrict basic rights to expressly cite the Article which is being limited: the so-called Zitiergebot. Moreover, the details of any change and the amending law must be given. This is generally regarded as a formal or procedural requirement which must be complied with when restricting basic rights. Apparently it is very similar to the requirements imposed by the minority judges in R v Pora.

In the end the promoted methodology envisages a greater role for the judiciary and practically provides judges with a means of reviewing parliamentary legislation. As understood and applied by Elias CJ, Tipping and Thomas JJ the new perception of the judicial role comes close to judicial invalidation and thus challenges the core concept of Diceyan orthodoxy, namely that Acts of Parliament are sacrosant and may not be invalidated by the courts. The fact that this is exercised under the guise of interpretation and in the name of Parliament's intention is nothing more than an attempt to disguise its true consequences.